facebook ipo – what liability for nasdaq? August 23, 2012Posted by Bradley in : Uncategorized , trackback
Evelyn Rusli at the NYTimes Dealbook links to Citigroup’s comment letter on Nasdaq’s proposed approach to remediate harms caused to market participants during the facebook ipo (comments were due yesterday). Citigroup argues that Nasdaq’s claim to benefit from immunity is incorrect because Nasdaq was acting in its business capacity rather than as an SRO. It also argues that Nasdaq was grossly negligent. And there are policy arguments also:
Nasdaq effectively takes the position that it should not have liability for its failings because the for-profit exchanges are too critically important to have to potentially stand up for their errors, while brokers who fail as a result of poor planning must pay for their failure. This is an unlevel playing field premised on an outdated construct of exchanges as bastions of market integrity, rather than the for-profit corporations that they are today.
SIFMA is of the strong belief that Nasdaq did not act in an SRO capacity in carrying out the Facebook IPO. Rather, we believe Nasdaq was operating solely in its role as a for-profit market participant. In this regard, we note that Nasdaq received the Facebook listing, and its attendant listing fees, after a hard-fought competition with the New York Stock Exchange to gain Facebook’s listings business.